Visual artists should be very relieved by last week’s decision at the Fourth Circuit Court of Appeals, overturning the District Court’s finding of fair use in Brammer v. Violent Hues. Frankly, fair use advocates should be happy about the ruling, too, because nobody who sincerely cares about copyright should celebrate an error of law. If a court simply disregards the exclusive rights of authors, as the District Court did in this case, the fair use doctrine becomes a meaningless exception to a non-existent rule.
“…difference in purpose is not quite the same thing as transformation.”
If I had to pick one takeaway from this case for users of works in the digital age, it would be the citation to this quote from Infinity Broadcasting Corp. v. Kirkwood (1998). As mentioned many times on this blog and elsewhere, the “transformativeness” test, which became part of the fair use analysis after 1990, is a troublemaker. For a great summary describing how and why it became a troublemaker, I recommend this three-part post written by Scott Alan Burroughs on Above the Law.
To stress what a pain in the butt this concept can be, I stated in a recent post that simply “placing a work in a new context” is not “transformative.” But even using the term “context” is nettlesome because courts may use that term to describe “transformative” uses that are non-expressive. For instance, the Fourth Circuit in Brammer has provided a handy explanation of the distinction between those uses and the infringement committed by Violent Hues. The opinion states that there are two viable paths for finding fair use when a contextual (i.e. non-creative) change is “transformative”: technological uses and documentary uses …
“In the first category, copyrighted works provide raw material for new technological functions. These functions are indifferent to the expressive aspects of the copied works. For example, we have held transformative the total reproduction of student essays for a plagiarism detection service because the database served an “entirely different function” that was unrelated to the expressive content of those essays.”
“In the second category, copyrighted works serve documentary purposes and may be important to the accurate representations of historical events. These representations often have scholarly, biographical, or journalistic value, and are frequently accompanied by commentary on the copyrighted work itself.”
Admittedly, even documentary does not easily fit into the non-expressive family of fair uses because documentary is expressive and, perhaps most importantly, scholarship, biography, journalism, and commentary were already stated among the purposes of fair use fourteen years before Judge Pierre Leval wrote the paper, Toward a Fair Use Standard, which added the concept of “transformativeness” to the fair use test.
We’ll leave that can of worms unopened for now. Suffice to say that Violent Hues’s publishing Brammer’s photograph on a website to promote a film festival does not describe either of the court’s two contextual fair uses. “What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting,” states the opinion. “Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”
It is so easy to click, edit, and repost any image that pausing to consider legality is apparently overwritten as a necessary step. (And the defendant in this case is a professional image-maker who should have known better.) I’ve said it before in posts about fair use. There are too many messages whirling around in cyberspace, denigrating copyright owners’ rights and disfiguring the nature of fair use, that it is easy to imagine how a gist of these ideas seeps into the mind of a user about to publish a work he has no right to use.
For users who would prefer not to wander into the tall grass where attorneys, scholars, and jurists debate the meaning (or lack thereof) of “transformativeness,” there is little need to go there. The Fourth Circuit in Brammer has provided a pretty basic set of rules for the use of works “in new contexts,” which I presume to summarize as follows:
If you are not engaged in a fairly large-scale technology enterprise using the non-expressive aspects of a corpus of works to power a new and useful system, your use is very likely not “transformative.”
If you are not producing a work, in which you comment upon the used work, your use is very likely not “transformative.”
If you are not producing a new expression that depends upon altering the used work, your use is very likely not “transformative.”
If, you “find”a photograph online that you think would jazz up your web page, no matter what you think it’s communicating, either get permission, make sure it’s free to use, take your own picture, or license a cheaper picture because your attorney is probably going to fail—at least on appeal—in any attempt to TRANSFORM your lapse in judgment into a sound fair use defense.
Meanwhile, don’t try assessing “transformativeness” at home when even the legal experts are still arguing about what it means. As Burroughs addresses in his posts, the “transformativeness” test does not have the caselaw-to-statutory history that produced the four-factor test for fair use codified in 1976. This is unfortunate because a prospective user of a work should be able to conduct at least a preliminary fair use test without an attorney; and the original four-factor test, while subjective, is much easier without the “transformative” filter.
Most simply, a user like Violent Hues should jump straight to Factor Four and ask themselves whether the proposed, unlicensed use, if made repeatedly by other parties, would deprive the copyright owner of a market opportunity that is rightly his to exploit. The unequivocal answer to that question in this case was yes. If a photographer does not have the right to license his images, then his exclusive rights in the copyright law do not exist; and if those rights do not exist, then neither does the fair use exception or, for that matter, the entire miscarriage of reason that produced this fiasco of a lawsuit.
© 2019, David Newhoff. All rights reserved.